Patronizing Paternalism vs. Freedom of Conscience

The opposition to conscience laws has it’s roots in paternalism, the idea that the nanny state is mother, father and priest. It is based in the false idea that the state is the master of right and wrong, the great all-knowing, flawless arbiter, nearly god-like in it’s ability to determine whose religious convictions are acceptable and whose are not.

According to the Stanford Encyclopedia of Philosophy, Paternalism is the interference of a state or an individual with another person, against their will, and justified by a claim that the person interfered with will be better off or protected from harm. The issue of paternalism arises with respect to restrictions by the law such as anti-drug legislation, the compulsory wearing of seatbelts, compulsory payment into social security and until recently, demanded medical personnel perform medical procedures they find morally objectionable, even when alternatives were readily available.

In the current political climate, there are many preaching disregard for religious freedom of conscience under the guise of what’s best for the state. The scary thing is that there are those coming to power who are demanding a return to those policies of coercion, all in the name of the greater good.

Despite what the nanny state thinks, government is no replacement for religion and is not in a place to judge the value of religious conviction. Is there any appropriate price for demanding someone give up their religious choice and freedom for convenience?

Paternalistic policies, which currently favor secularism as the national religion, seem bent on forcing the religious objectors to conform to secularist views in order to benefit the convenience of everyone else. It is the height of arrogance to imagine that the state can and ought to have such power over it’s citizens.

This is the issue we’ll be hearing more of in the next month as this battle heats up. Here are two articles I read on this issue that I thought were enlightening. One for, one against freedom of conscience. —Beetle Blogger

In Wisconsin, a pharmacist who is a devout Christian refused to fill a woman’s prescription for birth-control pills. He also refused to transfer the prescription to another pharmacy. He now faces disciplinary action.

In Texas, another pharmacist refused to fill the prescription for a morning-after pill requested by a rape victim – again, because of his religious convictions. Though Texas has a law that allows any doctor, nurse or hospital employee to opt out of an abortion procedure to which he or she has religious objections, it isn’t clear whether the law covers pharmacists or morning-after pills. The Texas pharmacist has been fired.

These cases are not unusual. Other disputes involving pharmacists whose religious conscience will not allow them to fill a prescription have surfaced in a half-dozen other states. So the question naturally arises: How should the law react to these events? Such an inquiry requires us to examine the role of religion and law in the public square.

An understanding of American history would help. The journey of the Pilgrims to Massachusetts was a journey of religious conscience from the orthodoxy of Anglican England. So, too, was the journey of the Society of Friends to Pennsylvania.

Harlan Fiske Stone, later to be Chief Justice of the Supreme Court, drew on this history when he wrote: “Both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man’s moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.”

As a society, we have long recognized the truth of Stone’s words, refusing even to compel the religious conscience of objectors to serve in wartime. We exempt from combat service anyone who “by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Our civil rights laws prohibit discrimination on the basis of religious belief in any employment.

So, the answer from our history and the law is fairly clear. The answer we’ve given to those who are conscientious objectors to war should be the same answer we give those who are conscientious objectors to abortion. The principle of liberty of conscience must be a universal one, evenly applied across all religions and all beliefs, lest the government be in the uncomfortable and untenable position of choosing among disparate religious views and determining their legitimacy. We should no more compel a pharmacist to dispense birth control if it violates his conscience than, say, compel a prison guard to participate in an execution if religious objections cause him to oppose capital punishment.

That same history also allows us to draw appropriate lines. Freedom of conscience is a shield against compulsion, not a sword for religious orthodoxy. That is the beauty of the balance struck by the Free Exercise and Establishment clauses of the First Amendment. Those who bring their religion into the public square may not be compelled as the price of admission to abandon it.

But neither can they impose their views on others. Society may accommodate religious beliefs by, for example, not requiring a pharmacist to fill a prescription that violates his scruples. But the pharmacist cannot then impose his beliefs by refusing to identify an alternate source for medication whose dispensation remains a lawful, permissible activity.

To be sure, the balance is a delicate one. But it’s a line we must draw faithfully if we are to remain true to our history and the law.

Paul Rosenzweig is a senior legal research fellow at The Heritage Foundation and an adjunct professor of law at George Mason University School of Law.

Women’s groups, state governments, and a host of others have reacted harshly to the new conscience rights regulation put forth by the Department of Health and Human Services last week. I received a slew of press releases in my in box from such organizations as the National Family and Reproductive Health Association, which stated that the “new regulations will limit access to contraception to low-income and uninsured women and men and will create new hurdles for family-planning service providers,” and from the National Partnership for Women and Families, which said, “These regulations leave the term ‘abortion’ undefined, so individuals and institutions are free to classify birth control as abortion.” The ACLU also expressed its “grave concern.”

Newspaper editorial writers have gotten in on the act, too. The Albany Times Union called for Democratic Sen. Hillary Clinton of New York to fight the rule before she leaves office to become secretary of state. Of course, bloggers have been sounding off about this regulation since it was first proposed last summer, as I previously reported.

Most fascinating to me, though, is the decision by Connecticut’s attorney general, Richard Blumenthal, to challenge the regulation by filing a lawsuit or petition in federal court arguing that the rule tramples on states’ and patients’ rights. He’s worried that the rule will reverse a one-year-old law requiring all hospitals in the state to offer emergency contraception to rape victims. “The consequence of this regulation,” he tells me, “would be to blow apart the carefully crafted, painstaking compromise that we reached in our state statute.”

He says he’s considering challenging the new rule in federal court, but that can’t happen until it goes into effect on January 18. A dozen other states with similar laws for rape victims—including Maryland, Illinois, and Arizona—could join him in the legal battle.